Senate Bill S7375A

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7375

                            I N  S E N A T E

                               May 2, 2012
                               ___________

Introduced  by Sen. McDONALD -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

AN ACT to amend the mental hygiene law and the penal law, in relation to
  disqualification of employment for certain criminal  history  informa-
  tion and deeming an individual with a developmental disability incapa-
  ble  of  giving  consent;  and to amend the criminal procedure law, in
  relation to providing an exception to the hearsay rule to allow testi-
  mony from persons with developmental disabilities

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The mental hygiene law is amended by adding a new section
13.40 to read as follows:
S 13.40 DISQUALIFICATION FOR CERTAIN CRIMINAL HISTORY INFORMATION.
  NOTWITHSTANDING ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW  AND  ANY
OTHER LAW TO THE CONTRARY, THE OFFICE SHALL DENY OR DISAPPROVE AN APPLI-
CATION FOR EMPLOYMENT OR VOLUNTEER SERVICE FOR A PROSPECTIVE EMPLOYEE OR
VOLUNTEER OF THE OFFICE OR OF A PROVIDER OF SERVICES THAT CONTRACTS WITH
OR  IS  APPROVED  OR  OTHERWISE  AUTHORIZED  BY  THE  OFFICE  TO PROVIDE
SERVICES, WHERE CRIMINAL HISTORY  INFORMATION  RECEIVED  PURSUANT  TO  A
CRIMINAL  HISTORY  RECORD  CHECK  CONCERNING THE PROSPECTIVE EMPLOYEE OR
VOLUNTEER REVEALS A CONVICTION FOR:
  (A) ANY OFFENSE PURSUANT TO ARTICLE ONE  HUNDRED  TWENTY-FIVE  OF  THE
PENAL LAW;
  (B)  ANY  OFFENSE  PURSUANT TO ARTICLE ONE HUNDRED THIRTY OF THE PENAL
LAW;
  (C) ANY FELONY OFFENSE PURSUANT TO ARTICLE ONE HUNDRED TWENTY  OF  THE
PENAL LAW;
  (D)  ANY  OFFENSE  PURSUANT  TO ARTICLE ONE HUNDRED FIFTY OF THE PENAL
LAW;
  (E) ENDANGERING THE WELFARE OF A CHILD PURSUANT TO SECTION  260.10  OF
THE PENAL LAW;
  (F)  ENDANGERING  THE WELFARE OF AN INCOMPETENT OR PHYSICALLY DISABLED
PERSON PURSUANT TO SECTION 260.25 OF THE PENAL LAW;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15718-01-2

S. 7375                             2

  (G) ENDANGERING THE WELFARE OF A  VULNERABLE  ELDERLY  PERSON,  OR  AN
INCOMPETENT  OR PHYSICALLY DISABLED PERSON IN THE SECOND DEGREE PURSUANT
TO SECTION 260.32 OF THE PENAL LAW;
  (H)  ENDANGERING  THE  WELFARE  OF  A VULNERABLE ELDERLY PERSON, OR AN
INCOMPETENT OR PHYSICALLY DISABLED PERSON IN THE FIRST  DEGREE  PURSUANT
TO SECTION 260.34 OF THE PENAL LAW;
  (I)  ANY  OFFENSE  PURSUANT  TO ARTICLE TWO HUNDRED SIXTY-THREE OF THE
PENAL LAW;
  (J) KIDNAPPING IN THE FIRST DEGREE PURSUANT TO SECTION 135.25  OF  THE
PENAL LAW;
  (K)  KIDNAPPING IN THE SECOND DEGREE PURSUANT TO SECTION 135.20 OF THE
PENAL LAW;
  (L) ROBBERY IN THE SECOND DEGREE PURSUANT TO  SECTION  160.10  OF  THE
PENAL LAW;
  (M)  ROBBERY  IN  THE  FIRST  DEGREE PURSUANT TO SECTION 160.15 OF THE
PENAL LAW;
  (N) ANY ATTEMPT TO  COMMIT  ANY  OF  THE  CRIMES  REFERENCED  IN  THIS
SECTION; OR
  (O) ANY COMPARABLE OFFENSE IN ANY OTHER JURISDICTION.
  S  2.  Paragraph  (h)  of subdivision 3 of section 130.05 of the penal
law, as amended by chapter 264 of the laws of 2003, is amended and a new
paragraph (i) is added to read as follows:
  (h) a client or patient and the actor is a  health  care  provider  or
mental  health  care  provider  charged with rape in the third degree as
defined in section 130.25, criminal sexual act in the  third  degree  as
defined  in section 130.40, aggravated sexual abuse in the fourth degree
as defined in section 130.65-a, or sexual abuse in the third  degree  as
defined in section 130.55, and the act of sexual conduct occurs during a
treatment session, consultation, interview, or examination[.]; OR
  (I)  AN  INDIVIDUAL WITH A DEVELOPMENTAL DISABILITY RECEIVING SERVICES
FROM A PROGRAM OR FACILITY OPERATED,  CERTIFIED  OR  AUTHORIZED  BY,  OR
FUNDED  THROUGH,  CONTRACT  BY  THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES WHERE THE ACTOR IS NOT MARRIED TO SUCH INDIVIDUAL AND IS AN
EMPLOYEE, INTERN, CONSULTANT, CONTRACTOR OR VOLUNTEER OF SUCH PROGRAM OR
FACILITY WHERE THE INDIVIDUAL RECEIVES SERVICES.
  S 3. The criminal procedure law is amended by  adding  a  new  section
60.77 to read as follows:
S  60.77  STATEMENTS OF PERSONS WITH DEVELOPMENTAL DISABILITIES; HEARSAY
          EXCEPTION.
  1. AN OUT-OF-COURT STATEMENT MADE BY A  PERSON  WITH  A  DEVELOPMENTAL
DISABILITY,  AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE
MENTAL HYGIENE LAW, NOT OTHERWISE ADMISSIBLE BY A STATUTE OR COURT  RULE
THAT  PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY IS ADMISSIBLE IN
ANY CRIMINAL OR DELINQUENCY PROCEEDING IN WHICH THE PERSON IS ALLEGED TO
HAVE BEEN A VICTIM IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION
ARE SATISFIED.
  2. (A) AN OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOPMENTAL
DISABILITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF  THE
MENTAL  HYGIENE  LAW, THAT DESCRIBES ALL OR PART OF AN OFFENSE DESCRIBED
IN PARAGRAPH (B) OF THIS SUBDIVISION PERFORMED WITH, BY, ON, OR  IN  THE
PRESENCE  OF  THE  DECLARANT,  AND THAT IS NOT OTHERWISE ADMISSIBLE BY A
STATUTE OR COURT RULE THAT PROVIDES AN EXCEPTION  TO  THE  OBJECTION  OF
HEARSAY, IS ADMISSIBLE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED.
  (B)  THE  EXCEPTION  DESCRIBED  IN  PARAGRAPH  (A) OF THIS SUBDIVISION
APPLIES TO AN OUT-OF-COURT STATEMENT MADE BY A PERSON  WITH  A  DEVELOP-

S. 7375                             3

MENTAL  DISABILITY,  WHICH STATEMENT DESCRIBES ALL OR PART OF ANY OF THE
FOLLOWING OFFENSES:
  (I)  ANY  OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL
LAW;
  (II) LABOR TRAFFICKING AS DESCRIBED IN SECTION  135.35  OF  THE  PENAL
LAW;
  (III)  AN  OFFENSE  INVOLVING  INCEST  AS DESCRIBED IN SECTION 255.25,
255.26 OR 255.27 OF THE PENAL LAW;
  (IV) SEX TRAFFICKING AS DESCRIBED IN SECTION 230.34 OF THE PENAL LAW;
  (V) ANY OFFENSE DESCRIBED IN ARTICLE TWO HUNDRED  THIRTY-FIVE  OF  THE
PENAL LAW;
  (VI)  CRIMINAL  ATTEMPT  TO  COMMIT  ANY OF THE ACTS SPECIFIED IN THIS
PARAGRAPH.
  3. AN OUT-OF-COURT STATEMENT BY A PERSON WITH A DEVELOPMENTAL DISABIL-
ITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE  MENTAL
HYGIENE  LAW,  THAT  DESCRIBES  ANY ACT OF CHILD ABUSE, CHILD NEGLECT OR
CHILD MALTREATMENT TO WHICH THE DECLARANT WAS  SUBJECTED  OR  WHICH  THE
DECLARANT  WITNESSED,  AND THAT IS NOT OTHERWISE ADMISSIBLE BY A STATUTE
OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS
ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
IN WHICH A CHILD IS ALLEGED TO BE A VICTIM OF CHILD  ABUSE,  NEGLECT  OR
MALTREATMENT,  IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE
SATISFIED.
  4. AN OUT-OF-COURT STATEMENT MADE BY A  PERSON  WITH  A  DEVELOPMENTAL
DISABILITY,  AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE
MENTAL HYGIENE LAW, THAT DESCRIBES ALL OR PART OF AN  OFFENSE  CONTAINED
IN  ARTICLE  ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, OR THAT DESCRIBES
AN ACT OF DOMESTIC VIOLENCE AS DEFINED IN  SUBDIVISION  ONE  OF  SECTION
481-C OF THE SOCIAL SERVICES LAW, NOT OTHERWISE ADMISSIBLE BY STATUTE OR
COURT  RULE  THAT  PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS
ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED.
  5. THE EXCEPTIONS TO THE OBJECTION OF HEARSAY  DESCRIBED  IN  SUBDIVI-
SIONS  ONE,  TWO, THREE AND FOUR OF THIS SECTION SHALL APPLY ONLY IF THE
COURT FINDS IN A HEARING CONDUCTED OUTSIDE THE PRESENCE OF THE JURY THAT
THE TIME, CONTENT, AND CIRCUMSTANCES OF THE STATEMENT PROVIDE SUFFICIENT
SAFEGUARDS OF RELIABILITY; AND EITHER:
  (A) THE STATEMENT IS A NON-TESTIMONIAL STATEMENT; OR
  (B) (I) THE DECLARANT TESTIFIES AT THE PROCEEDINGS; OR
  (II) IF THE DECLARANT IS UNAVAILABLE TO TESTIFY, THE DEFENDANT HAS HAD
AN OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT IN A  PREVIOUS  PROCEEDING
AND  THERE  IS CORROBORATIVE EVIDENCE OF THE ACT WHICH IS THE SUBJECT OF
THE STATEMENT.
  6. IF A STATEMENT IS ADMITTED PURSUANT  TO  THIS  SECTION,  THE  COURT
SHALL  INSTRUCT  THE  JURY IN THE FINAL WRITTEN INSTRUCTIONS THAT DURING
THE PROCEEDING THE JURY HEARD EVIDENCE REPEATING A PERSON'S OUT-OF-COURT
STATEMENT, THAT IT IS FOR THE JURY TO DETERMINE THE WEIGHT AND CREDIT TO
BE GIVEN THE STATEMENT, AND THAT, IN MAKING THE DETERMINATION, THE  JURY
SHALL  CONSIDER  THE  NATURE  OF  THE STATEMENT, THE CIRCUMSTANCES UNDER
WHICH THE STATEMENT WAS MADE, AND ANY OTHER RELEVANT FACTOR.
  7. THE PROPONENT OF THE STATEMENT SHALL GIVE THE ADVERSE PARTY REASON-
ABLE NOTICE OF HIS OR HER INTENTION  TO  OFFER  THE  STATEMENT  AND  THE
PARTICULARS OF THE STATEMENT.
  S 4. This act shall take effect immediately.